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In oral arguments that occasionally resembled a contentious civics class, the Georgia Supreme Court on Tuesday wrestled with a case that could decide the balance of power within the state government. The issue was a fight between Georgia Gov. George E. “Sonny” Perdue III and Attorney General Thurbert E. Baker over who controls the state’s legal decisions. Perdue, a Republican, ordered Baker, a Democrat, to drop the state’s U.S. Supreme Court appeal of a lower court’s redistricting decision. Baker refused, setting up a constitutional confrontation in which each side has accused the other of an unauthorized power grab. On Tuesday, the justices tested each side’s theories, leaving lawyers for Baker and Perdue on the defensive and attempting to downplay the significance of a ruling in their clients’ favor. If the court accepts Baker’s position that he called the state’s legal shots, Chief Justice Norman S. Fletcher suggested, “There’d be no check and balance for the attorney general.” Richard H. Sinkfield, Baker’s lawyer, said, “This is a special case,” one in which the governor was trying to prevent the attorney general from enforcing a redistricting law passed by the General Assembly. “This is not a case where the attorney general seeks to become the ruler of the universe,” Sinkfield added later. Justice Carol W. Hunstein posed a similar challenge to Frank C. Jones, who represented Perdue. “Does your position mean the attorney general has to ask the governor for permission any time he files a lawsuit?” she asked. “Technically, yes,” Jones said. But like Sinkfield, he tried to limit the significance of the court’s ruling, adding that the governor and the attorney general almost “always get along” and cooperate. But this was not one of those times, and the state’s new political scene — in which Perdue became the first Republican governor since Reconstruction — means these situations could occur more often. The case stems from the 2000 Census, after which the Democrat-controlled General Assembly aggressively gerrymandered the legislative map to favor the election of Democrats. But because the Democrats spread black votes around the state, reducing some safe black majorities to around 50 percent, a three-judge federal court last year ruled that Georgia might have violated the Voting Rights Act. The General Assembly and then-Gov. Roy E. Barnes passed Act 444, which implemented a new map, pending a “final determination” on the old map. Baker, a Democrat, appealed the three-judge panel’s ruling to the U.S. Supreme Court in an attempt to get a final determination. But the same week that the U.S. high court agreed to hear the case, Perdue took office. He first asked, then demanded, that Baker dismiss the redistricting appeal. When Baker refused, Perdue sued him in Fulton County Superior Court. Last month, Judge Constance C. Russell ruled for Baker. She concluded that Baker was required by Act 444 to decide if the appeal should be pursued. “His decision may not be overturned by the Governor,” she added. Last week, the U.S. Supreme Court heard arguments in the redistricting case, Georgia v. Ashcroft, No. 02-182, and is expected to issue a ruling by early July. If the Georgia high court rules for Perdue, it presumably would need to do so before the U.S. high court issues its ruling to have any effect. ‘WHEN REQUIRED BY THE GOVERNOR’ On Tuesday, Fletcher thanked the lawyers for submitting their briefs within the two weeks since the court took the case, but he said a decision in Perdue v. Baker, No. S03A1154, might not come as soon. Fletcher and the court faced a relatively unusual sight, as about 100 spectators crowded into the courtroom, including four members of the Georgia Court of Appeals. Another 150 people logged into the court’s Web site to watch the argument live, according to the court clerk. The governor also made a rare visit to the Georgia Supreme Court. Perdue sat in the front row, behind his legal team. Baker sat with his lawyers at the counsel’s table on the right side of the room. The two shook hands just before the argument started. As Sinkfield and Jones presented competing statutes and sections of the state constitution on a white screen hanging from the ceiling, the argument took on the tone of a contentious civics class. Jones went first because he represented the appellant. He focused on a section of the state constitution that says the attorney general shall represent the state “when required by the Governor” and on O.C.G.A. 45-15-35, which says, “The Governor shall have the power to direct the Department of Law, through the Attorney General as head thereof, to institute and prosecute in the name of the state such matters, proceedings and litigations as he shall deem to be in the best interest of the people of the state.” “It’s hard for me to imagine clearer language,” Jones said. Presiding Justice Leah Ward Sears pointed back to the constitution, which said after the “when required” language that the attorney general “shall perform such other duties as shall be required by law.” “That could be the legislative enactment 444,” Sears suggested. Jones disagreed, arguing that 444 only required a “final determination” of the redistricting case, which could occur by dismissal. No appeal to the U.S. Supreme Court was directed specifically by the law, he added, noting that a specific requirement by the Legislature to bring the appeal would violate the separation of powers between the legislative and executive branches. Jones argued that the creation of the 1983 constitution, which as the latest version controls state law, showed that the framers did not intend for the attorney general to have powers beyond those of the governor. Jones said that the framers had rejected efforts by the attorney general’s staff to remove the “when required by the Governor” language from the duties of the attorney general. A LANGUAGE DISPUTE When Sinkfield’s turn came, he argued that the executive branch — the governor and the attorney general — must uphold the law. Accordingly, he said, the redistricting appeal should go forward to the U.S. Supreme Court as “the only forum” in which a final determination could be made on the Senate map. Decisions by the three-judge panels in Voting Rights Act cases may be appealed only to the U.S. Supreme Court. Not bringing the appeal, he added, “would have been an abandonment” of Baker’s duties. Sears asked what would happen in a reverse case — in which the governor wanted an appeal to go forward and the attorney general did not. Sinkfield appeared to equivocate. The governor may direct the attorney general, he said, and “the attorney general is required to respond to that direction.” Sinkfield said that Baker had initiated, on his own, the state’s tobacco suit, adding that O.C.G.A. 45-15-34 says, “The Department of Law is vested with complete and exclusive authority and jurisdiction in all matters of law relating to the executive branch of government.” Fletcher wasn’t impressed. Isn’t that just saying the attorney general is the only lawyer entitled to represent the executive branch? he asked. Sinkfield said the statute said more than that. Sears asked, “Is it possible the governor and the attorney general have independent, co-equal rights?” “Precisely,” Sinkfield said. But Fletcher was skeptical again, asking where such a balance was struck. Sinkfield pointed to the 1983 constitution’s description of the attorney general’s duties, where framers added a comma after “when required by the governor” and before “and shall perform such other duties as shall be required by law.” The comma, Sinkfield said, meant that the framers wanted to emphasize that the attorney general had other duties beyond those “when required” by the governor. Once more, Fletcher sounded unconvinced, reeling off previous constitutions in which that comma appeared and disappeared, depending on the year. Fletcher proposed a hypothetical situation in which the governor is negotiating water rights with the governors of Florida and Alabama. The governor wants to keep negotiating, but the attorney general wants to bring a suit. Whose call is it? Sinkfield said the attorney general was required to consult the governor. Then he quickly pointed out the difference between that hypothetical and this case. He said, “Here the attorney general was acting pursuant to the interpretation of law passed by legislature” seeking final determination of the redistricting issue. Staff reporter Rachel Tobin Ramos contributed to this article.

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